Wednesday, 10 May 2017

Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State

Professor Steve Peers

What immigration rights do non-EU
citizens have under EU law? There are three main areas of EU law that address
this issue: EU immigration and asylum law; EU treaties with non-EU countries;
and EU free movement law. The latter area of law is focussed on EU citizens’ right
to move between Member States, and so only covers non-EU citizens if they are
family members of EU citizens who have moved to another Member State. Those
rules also apply by analogy where an EU citizen with a non-EU family member has
moved to another Member State, then moved back to that citizen’s home Member
State. (These are known as Surinder Singh
cases: see this discussion
of the ECJ’s most recent ruling on such cases, from 2014).

But what if an EU citizen has a
non-EU family member, but has never moved to another Member State? Such cases
fall outside the scope of EU free movement law. They will therefore in principle
fall solely within the scope of national law, unless either EU immigration and
asylum law or EU treaties with non-EU countries apply (they usually will not).
But in a limited number of cases, there is a fourth category of EU law
which might apply to them: EU citizenship law.

This principle was first set out
in the 2011 judgment in Ruiz
Zambrano, which concerned Belgian children living in Belgium with two
non-EU parents. The ECJ ruled that expelling the non-EU parents would in effect
would result in the departure of the children from the EU, thereby risking the ‘genuine
enjoyment of the substance’ of those children’s EU citizenship rights.

Subsequent ECJ case law
(discussed here)
made clear that this principle is apparently restricted to the non-EU parents
of EU citizen children living in their home State. Cases very similar to Zambrano – two non-EU parents of an EU
child – are rare, because Member States now rarely, if ever, confer nationality
upon children simply because they are born on the territory. However, there are
rather more cases where: a) a home-State EU citizen marries a non-EU citizen, b)
their child gets home-State citizenship because one of her parents is a
home-State citizen; and c) the parents’ relationship ends.

In those cases, Ruiz Zambrano still potentially applies,
as long as the non-EU parent is the ‘primary carer’ for the home-State EU
citizen child. In that case, removing this parent to a non-EU country would in
effect force the EU citizen child to leave the EU as well. But when exactly does the ‘primary carer’ test
apply? The ECJ clarified this issue in today’s important judgment in Chavez-Vilchez
and others.

Judgment

Chavez-Vilchez and others concerned a number of non-EU parents of
Dutch children in the Netherlands, who sought to argue that they were primary
carers of those children, and so entitled to residence in accordance with the Ruiz Zambrano judgment. The Dutch government
argued that they could not automatically be considered primary carers if it was
possible for the other parent, ie the Dutch citizen, to take care of the children:

…the mere fact
that a third-country national parent undertakes the day-to–day care of the
child and is the person on whom that child is in fact dependent, legally,
financially or emotionally, even in part, does not permit the automatic
conclusion that a child who is a Union citizen would be compelled to leave the
territory of the European Union if a right of residence were refused to that
third-country national. The presence, in the territory of the Member State of
which that child is a national or in the territory of the Union, as a whole, of
the other parent, who is himself a Union citizen and is capable of caring for
the child, is, according to the Netherlands Government, a significant factor in
that assessment (para 66)

While the Court of Justice agreed
that the non-EU parents could not automatically be considered as primary carers
where the home state EU citizen child was dependent upon them, the Court’s
approach was more open. It began by restating prior case law: the key issue was
‘who has custody of the child and whether that child is legally, financially or
emotionally dependent on the third-country national parent’ (para 68). It then
reiterated, following Zambrano, that
dependency was particularly significant (para 69). Then it added new detail on
how to assess dependency:

…it is
important to determine, in each case at issue in the main proceedings, which
parent is the primary carer of the child and whether there is in fact a relationship
of dependency between the child and the third-country national parent. As part
of that assessment, the competent authorities must take account of the right to
respect for family life, as stated in Article 7 of the Charter of
Fundamental Rights of the European Union, that article requiring to be read in
conjunction with the obligation to take into consideration the best interests
of the child, recognised in Article 24(2) of that charter (para 70).

For the
purposes of such an assessment, the fact that the other parent, a Union
citizen, is actually able and willing to assume sole responsibility for the
primary day-to-day care of the child is a relevant
factor, but it is not in itself a sufficient ground for a conclusion
that there is not, between the third-country national parent and the child,
such a relationship of dependency that the child would be compelled to leave
the territory of the European Union if a right of residence were refused to
that third-country national. In reaching such a conclusion, account
must be taken, in the best interests of the child concerned, of all the
specific circumstances, including the age of the child, the child’s physical
and emotional development, the extent of his emotional ties both to the Union
citizen parent and to the third-country national parent, and the risks which
separation from the latter might entail for that child’s equilibrium.
(para 71; emphases added)

The Court went on to answer
questions from the national court about the burden of proof in Zambrano cases, which were connected
with the substantive test to be applied. The Dutch government had argued:

…the burden of
proof of the existence of a right of residence under Article 20 TFEU lies
on the applicants in the main proceedings. It is for them to demonstrate that,
because of objective impediments that prevent the Union citizen parent from
actually caring for the child, the child is dependent on the third-country
national parent to such an extent that the consequence of refusing to grant
that third-country national a right of residence would be that the child would
be obliged, in practice, to leave the territory of the European Union (para 74).

Although the ECJ
accepted that the burden of proof lay upon the non-EU parent (para 75), it also
ruled that national authorities ‘must ensure that the application of national
legislation on the burden of proof’ in such cases ‘does not undermine the
effectiveness’ of EU citizenship rights (para 76). This meant that the
authorities had to make ‘the necessary inquiries’ to find out where the EU
citizen parent lived, ‘whether that parent is, or is not, actually able and
willing to assume sole responsibility for the primary day-to-day care of the
child’ and whether the EU citizen child was dependent upon the non-EU parent
(para 77).

In effect, the Court ruled that while
the non-EU citizen must make a prima
facie case, national authorities share some of the burden to investigate
some aspects of the case. Again, the substantive test applicable is less
stringent than urged by the Dutch government.

Comments

Today’s judgment clarified a
number of issues relating to Zambrano
cases, following on from last year’s judgments in CS and Rendón Marín
(discussed here)
which clarified when non-EU Zambrano parents
could be expelled for public policy reasons. While the 2016 judgments referred
to the child’s best interests, age, situation and dependency (referring to case
law of the European Court of Human Rights), today’s judgment also refers to ‘physical
and emotional development’, ‘emotional ties’ to both parents, and the effect of
separation on the child. All of these are factors relating to the child, not to
the non-EU parent; but all of them nevertheless concern the child’s links with
that parent.

The Dutch government’s desired
focus on the capability of the EU citizen parent takes a back seat to the child’s
best interests, as further elaborated by the Court. This will protect more
non-EU parents, but in a differential way. Oddly, the Court’s case law does not
take express account of situations of joint custody, or the more general argument
that the child’s best interest will usually be to maintain strong relationships
with both parents (assuming they are
not negligent or abusive).

Could it also be argued that the requirement
of always seeking to identify a ‘primary carer’ is problematic from the point
of view of gender equality? Due to the
division of labour relating to child care in practice, the Court’s rulings would
classify more non-EU mothers than non-EU fathers as ‘Zambrano carers’; but the expulsion of those fathers will only
increase the childcare demands on the EU citizen mother who remains, as well as
disrupt the child’s right to maintain a relationship with his father. Of
course, the presence of the parent who looks after a child day-to-day is
essential; but children love the parent who kicks the ball as well as the
parent who cooks the meal.

The procedural aspects of the
Court’s judgment are interesting, but raise further questions: is there a right
to appeal, to a decision within a reasonable time, to a lawyer, to legal aid?
In last year’s judgments, the Court of Justice referred to concepts from EU free
movement law and its relevant case law when discussing the substantive test for
expelling Zambrano carers; but it
made no such cross-references today. The long-term immigration status of the
parent is also an open question, although Zambrano
noted that there should be access to employment to make the residence rights of
the parent effective.

Finally, a Brexit point: the draft
EU position for negotiating acquired rights does not appear to cover Zambrano
carers. From a technical point of view, this is logical because the case law
concerns (from the UK’s perspective) non-EU parents of UK citizens who have not
moved within the EU. So no free movement rights have been acquired; we are rather
talking of EU citizenship rights
which will necessarily be lost when the UK ceases to be a Member State, since
citizenship of the EU is defined as deriving from the nationality of a Member
State. But from a human point of view, any deterioration in legal status could damage
or even shatter the family lives of the children concerned. Zambrano carers should therefore be
protected ideally in the Brexit talks, or failing that by the UK unilaterally.

Possibly it could be relevant where a dual UK/EU citizen child or parent falls outside the scope of free movement law - then EU citizenship law would apply. Lounes should clarify what that scope is in the case of dual UK/EU citizens.

I didn't look well into it, but prima facie I do not understand how (if?) Chavez-Vilchez articulates with Dereci (Turkish father, Austrian mother and children, the Court says that refusing a right to stay to the father would not mean that the EU citizens would have to leave the EU territory)

What about a scenario where EU citizen marry a non EU citizen and during the term of their marriage have a child with another non EU citizen. Do the child from the non EU citizen have right of stay under EU law?

Also if the non EU citizen has no child with the EU citizen and do not have a permanent right of stay but only has a time resident permit in lieu of applying for a permanent resident but has divorce the EU citizen. Will the child from the non EU citizen again have a right stay under EU law ?

Remember this case is about home state EU citizen children. Immigration status derived from being a family member of an EU citizen who has moved within the EU is a different issue (free movement law), which was not the main focus of this case. I'll assume your questions are only about home State EU citizens.

Nothing in certain in the absence of case law, but since this case is about home State EU citizen children the child has the right to stay as a citizen. As for the child's parent, logically the answer to the first question is it depends on whether the second non-EU citizen is the primary carer of the home State EU citizen child.

Re the second question, I assume it's the same scenario except the first non-EU citizen is getting a divorce. Again, the EU citizen home State child has a right to stay as a citizen, while the second non-EU citizen can stay if he or she is the primary carer of that child as defined by the ECJ in this case.

The case concerned whether they had the residence right that would then enable them to claim benefit. The ECJ was only asked to rule on the residence aspect. UK case law has said Zambrano carers are entitled to benefits, but they can be limited.

What about a non-EU widowed, primary care giver mother to EU citizens/minor children (who obtained citizenship by way of their late father? Minor children are Irish citizens, mother has USA passport. Mother is looking to take children to Spain to live. Since the family unit would not be living in Ireland, would the non-EU mother have any rights to live or work in Spain?

That would be a case where free movement law would apply. In cases like Chen the ECJ has said that the EU child citizen has free movement rights, with the non-EU parent having a corollary right to stay as primary carer of the EU citizen. The parent's financial support it sufficient for the child to show 'sufficient resources' to qualify to stay. However the ECJ case law has not yet addressed whether the parent has a right to work or receive benefits in this scenario.

Absolute rubbish... I am a non-EU mother of two minor EU citizens, currently residing with me in Russia. They have absolutely no rights whatsoever compared to other EU kids. We cannot go on vacation to an EU country, get a long stay visa, or apply for a residence permit elsewhere. I have contacted embassy of Finland, Bulgaria and Czech Republic and all of them told me that we will have no privileges if I apply for visa or a residence permit. So pardon me, no need to write about non-existent rights.

You do realise Russia isn't in the EU? The point is that the case law turns on *removing* EU children from the EU, not admitting them. Since this is the latest in a line of court judgments the rights are hardly non-existent. I suggest being less angry and ignorant.

Thank you for your kind and smart reply. No worries, my kids and I will stay where we are and face whatever may come. We are already seen as enemies of the state and the situation might get much worse. Never mind, I will face everything that future holds. My frustration is quite understandable I believe. I have been married to an EU citizen for 12 years to be eventually abused and kicked out of an European country with two EU kids under the age of 2 years. Shall I be happy and thankful for that? Would you be less frustrated in my situation? Oh, you will never be in my situation, so it’s so easy to judge, right? When it comes to the right of residence in the EU, I did not ask for benefits or even I a job. I already earn more than an average European does (thanks to my ignorance perhaps). All I asked for is the right of residence for me and my kids.

If you start your comments with "Absolute rubbish" and claim that case law doesn't exist, then that's the reply you will get. I can't comment further without knowing further details of how you left the EU and your marriage to an EU citizen (facts which you didn't mention before).

By the way, I have not said that law does not exist. Law does not seem to work in my opinion. And no problem, I completely understand your reaction. Nowadays, the words Russian/Russia are like a red flag that triggers aggression and suspicion. You are not the first one to put me in my proper place. Funnily enough, we are treated with suspicion in Russia, because of dual citizenship of my kids and my long-term absence from the country. To put the icing on the cake, we are not welcome (to say the least) in the EU either. I wonder, is there a place that we will be able to call home one day? You welcome refugees from Afghanistan, Africa and other countries and refuse the right of residence to minor EU citizens? Call me ignorant again, but this does not make much sense to me, but perhaps there is a great idea behind such state of affairs. And yes, I am still married to an EU citizen, but this might change any time soon. I am not going to stay in abusive relationship, neither for the sake of EU passport nor for the right of residence, so you can punish me and my kids for that if you wish so. I will not comment on the article anymore, so all the best to all of you guys and merry X-mas.

Dear sirI am a non eu national and the primary carer of an italian boy age 12 who study in state school in uk. i hold uk residence card under derivative right of residence as the primary carer of eu citizen with self-sufficient (Chen case). Kindly help to advise when will happen after Brexit (my uk residence card expire 2020)

I think what the Russian lady was alluding to is the lack in legal certainty/security. As per her posts she would be entitled to obtain a visa at the border if she can produce a Hague Apostille bcert for her children and if 2004/38/EC would be actually reliably applied.Unfortunately there is little legal security for EU law and the damage due to this divergence (millions of frustrated rejects) can be far bigger than the merit of e.g. 2004/38/EC. So actually her "absolute rubbish... no existent rights" remark nicely summed this aspect up for me.